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NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit







Petition for review of the Merit Systems Protection

Board in No. CH-0752-18-0164-I-1.

Decided: November 7, 2019


ROBERT FERGUSON, JR., Jefferson City, MO, pro se.

KELLY A. KRYSTYNIAK, Commercial Litigation Branch,

Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.

Before REYNA, WALLACH, and HUGHES, Circuit Judges.


Pro se appellant Robert Ferguson, Jr. appeals the

Merit Systems Protection Board’s final decision affirming
his removal from the United States Postal Service based on
a charge of inappropriate conduct. Because we find sub-
stantial evidence supports the Board’s final decision, we af-
Mr. Ferguson was employed by the United States
Postal Service (“USPS” or the “agency”) as the Postmaster
of the Sedalia, Missouri, Post Office. As Postmaster, Mr.
Ferguson was the highest-ranking management official in
the office and was required to uphold the policies and reg-
ulations of the USPS. From August 2015 to August 2016,
Mr. Ferguson supervised Taleah Passmore, an employee at
the Sedalia, Missouri, Post Office. Shortly thereafter, Ms.
Passmore was terminated for unsatisfactory performance.
Following her termination, Ms. Passmore made allega-
tions to USPS officials that Mr. Ferguson made inappropri-
ate comments and gestures to her during her time at
USPS. After investigating Ms. Passmore’s allegations,
USPS identified eight incidents, also referred to as “speci-
fications,” of misconduct by Mr. Ferguson. The specifica-
tions included inappropriate touching and comments about
Ms. Passmore’s physical appearance and her family. As a
result, USPS terminated him. Mr. Ferguson appealed
USPS’s termination decision to the Merit Systems Protec-
tion Board (“MSPB” or the “Board”). On appeal, Ms. Pass-
more and Mr. Ferguson provided conflicting testimony
regarding the eight alleged specifications. Mr. Ferguson
generally denied that he made inappropriate comments
and gestures. The administrative judge found Ms. Pass-
more to be the more credible witness and affirmed the
agency’s charge of inappropriate conduct. The administra-
tive judge further found that Mr. Ferguson’s misconduct
was connected to the efficiency of his service, that the pen-
alty of removal was reasonable, and that Mr. Ferguson did

not sufficiently prove his affirmative defenses of retaliation

and harmful procedural error. The administrative judge
also rejected Mr. Ferguson’s claim that USPS gave him a
disparate penalty in comparison to McClain Richardson,
another USPS employee who was charged with misconduct
and demoted, but not removed. The administrative judge’s
decision became the final decision of the Board. Mr. Fer-
guson timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
Our review of MSPB decisions is statutorily limited.
See 5 U.S.C. § 7703(c). We must set aside a Board decision
when it is “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule or regulation having
been followed; or (3) unsupported by substantial evidence.”
Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir.
1984). “Underlying factual determinations are reviewed
for substantial evidence.” McMillan v. Dep’t of Justice,
812 F.3d 1364, 1371 (Fed. Cir. 2016). Mr. Ferguson raises
on appeal four challenges to the Board’s final decision.
Mr. Ferguson first challenges the administrative
judge’s determination that Ms. Passmore was more credi-
ble than Mr. Ferguson. According to Mr. Ferguson, the ad-
ministrative judge did not sufficiently address (1) “the
issues relating to Ms. Passmore’s potential bias” against
USPS for being terminated, (2) that “no other witnesses
support [Ms. Passmore’s] claims,” and (3) that “[Ms. Pass-
more’s] version of events” was inherently improbable. Ap-
pellant’s Br. 3.
The record, however, contradicts Mr. Ferguson’s argu-
ments. The record shows that the administrative judge ad-
dressed each of these issues but nonetheless decided that
Ms. Passmore was a more credible witness. First, the

administrative judge determined that because Mr. Fergu-

son was not involved in Ms. Passmore’s termination, Ms.
Passmore was not biased nor motivated by her termination
to report Mr. Ferguson’s misconduct. Second, although
there were no other witnesses to support Ms. Passmore’s
version of events, the administrative judge explained that
Ms. Passmore never alleged that witnesses observed Mr.
Ferguson’s inappropriate conduct, and, thus, this concern
was a non-issue. Lastly, the administrative judge ad-
dressed whether Ms. Passmore’s allegations were improb-
able because, as Mr. Ferguson claims, “these events
allegedly went on for months with her saying nothing to
anyone.” Id. First, the administrative judge credited the
agency’s evidence that victims are generally disincentiv-
ized to report harassment. Second, the administrative
judge credited Ms. Passmore’s testimony that she was
afraid of Mr. Ferguson and afraid of losing her job. Based
on this evidence, the administrative judge found that the
lapse in time alone did not suggest that Ms. Passmore fab-
ricated the alleged misconduct.
Having found that the administrative judge addressed
these issues, we reject Mr. Ferguson’s argument. To the
extent that Mr. Ferguson disagrees with the administra-
tive judge’s credibility determination and would have us
conclude otherwise, we reject this invitation. We do not
reweigh evidence on appeal. Jones v. Dep’t of Health & Hu-
man Servs., 834 F.3d 1361, 1368 (Fed. Cir. 2016) (stating
that credibility determinations are “virtually unreviewa-
ble” (quoting Hambsch v. Dep’t of Treasury, 796 F.2d 430,
436 (Fed. Cir. 1986))); Pope v. U.S. Postal Serv., 114 F.3d
1141, 1149 (Fed. Cir. 1997) (noting that credibility deter-
minations are not disturbed unless “inherently improbable
or discredited by undisputed fact”).

Mr. Ferguson next challenges the administrative
judge’s determination that removal was a proper penalty
because the administrative judge did not consider “every
one of the Douglas factor[s].” Appellant’s Br. 4. Mr. Fer-
guson’s position, however, is contrary to law. An agency
considers the twelve “Douglas” factors when determining
the appropriateness of a penalty for an employee. Douglas
v. Veterans Admin., 5 M.S.P.B. 313, 333 (1981). The agency
is not required to “mechanistically” consider all twelve fac-
tors “by any preordained formula.” Id. Instead, the agency
should conduct a “responsible balancing of the relevant fac-
tors in the individual case.” Id. Additionally, “[i]t is not
reversible error if the Board fails expressly to discuss all of
the Douglas factors.” Kumferman v. Dep’t of Navy, 785
F.2d 286, 291 (Fed. Cir. 1986) (quoting Nagel v. Dep’t of
Health & Human Servs., 707 F.2d 1384, 1386 (Fed. Cir.
1983)). “The Board need only determine that the agency
considered the factors significant to the particular case.”
Id. (quoting Hayes, 727 F.2d at 1540). Thus, contrary to
Mr. Ferguson’s position, the administrative judge did not
legally err by not analyzing all twelve Douglas factors.
Mr. Ferguson then argues that the administrative judge
erred when she failed to consider the Douglas factor of
“past disciplinary record,” noting that he has “no pas[t] or
current discipline” and “32 plus years of service.” Appel-
lant’s Br. 4. The record indicates, however, that the ad-
ministrative judge considered Mr. Ferguson’s past
disciplinary record. In its December 4, 2017, termination
letter to Mr. Ferguson, USPS stated that it considered Mr.
Ferguson’s past disciplinary record, which contained “no
live discipline.” Appellant’s Mem. 85. USPS explained
that “[w]hile these are mitigating factors in your favor,
they carry little weight in light of the severity of your mis-
conduct and your continued failure to accept responsibility
for such misconduct.” Id. USPS concluded that Mr. Fer-
guson’s “misconduct was serious enough to warrant the

penalty of removal.” Id. On appeal, the administrative

judge determined that USPS weighed the relevant Douglas
factors, including Mr. Ferguson’s past disciplinary record,
and that USPS’s decision to remove Mr. Ferguson “did not
exceed the tolerable limits of reasonableness.” J.A. 34. To
the extent that Mr. Ferguson would have had the adminis-
trative judge afford more weight to his past disciplinary
record, it is not the administrative judge’s role to reweigh
the Douglas factors. The administrative judge “assure[s]
that the agency did conscientiously consider the relevant
[Douglas] factors and did strike a responsible balance
within the tolerable limits of reasonableness,” and does not
“insist that the balance be struck precisely where the
Board would choose to strike it.” Norris v. S.E.C., 675 F.3d
1349, 1356 (Fed. Cir. 2012) (quoting Douglas, 5 M.S.P.B. at
332–33). Thus, because the administrative judge appropri-
ately reviewed USPS’s weighing of the Douglas factors,
which included Mr. Ferguson’s past disciplinary record, we
reject Mr. Ferguson’s argument.
Mr. Ferguson then challenges the administrative
judge’s determination that a settlement agreement did not
support Mr. Ferguson’s disparate penalty claim. Before
the Board, Mr. Ferguson alleged that USPS had treated
him disparately in comparison to Mr. Richardson, a fellow
USPS employee who was charged with similar misconduct
and demoted, but not removed. As evidence, Mr. Ferguson
relied on a settlement agreement between Mr. Richardson
and USPS in which Mr. Richardson’s penalty for miscon-
duct was a demotion. The administrative judge deter-
mined that the settlement agreement was not admissible
and explained that “disparate treatment claims cannot lie
based on action that was settled, because to require such
an explanation from the agency would have a chilling effect
on settlement agreements.” J.A. 37. This is not legal error.
A settlement agreement between an employee and an

agency does not constitute evidence of disparate treatment

because “[t]he decision whether to settle a particular case
and upon what terms is a matter particularly within the
discretion of the agency conducting the litigation.” Bergh
v. Dep’t of Transp., 794 F.2d 1575, 1577–78 (Fed. Cir. 1986)
(rejecting appellants’ disparate treatment claim regarding
the agency’s settlement with employees on a lesser pen-
alty). Thus, the administrative judge did not legally err
when excluding the settlement agreement from evidence.

Mr. Ferguson also argues that the administrative
judge committed several procedural errors. An adminis-
trative judge is given broad discretion in procedural mat-
ters concerning discovery and evidentiary issues. Curtin v.
Office of Personnel Mgmt., 846 F.2d 1373, 1378 (Fed. Cir.
1988); Turner v. Merit Sys. Prot. Bd., 806 F.2d 241, 245
(Fed. Cir. 1986). “This court will not overturn the board on
such matters unless an abuse of discretion is clear and is
harmful.” Baker v. Dep’t of Health & Human Servs., 912
F.2d 1448, 1457 (Fed. Cir. 1990) (quoting Curtin, 846 F.2d
at 1378). In order to be successful on a claim of procedural
error, the appellant has the burden to “prove that the error
caused substantial harm or prejudice to his rights which
could have affected the outcome of this case.” Id. (quoting
Curtin, 846 F.2d at 1379).
Mr. Ferguson first challenges the administrative
judge’s decision to require Mr. Ferguson to appear over
video-conference for the merits hearing of Mr. Ferguson’s
MSPB appeal while allowing Ms. Passmore to appear in
person. Mr. Ferguson, however, has failed to explain how
his appearance via video-conference affected the outcome
of the case, and, thus, has not shown that the administra-
tive judge abused her discretion regarding this procedural
decision. See id.

Mr. Ferguson also challenges the administrative

judge’s decision to deny his request to add Cynthia Bolles,
Mr. Ferguson’s former manager, to the witness list. “A de-
termination to allow or exclude witness testimony is within
the sound discretion of the administrative judge.” Guise v.
Dep’t of Justice, 330 F.3d 1376, 1379 (Fed. Cir. 2003) (citing
Tiffany v. Dep’t of Navy, 795 F.2d 67, 70 (Fed. Cir. 1986)).
The record indicates that Mr. Ferguson missed the May 2,
2018, prehearing submission deadline to list Ms. Bolles as
a witness. Despite this, the administrative judge gave Mr.
Ferguson an opportunity to add Ms. Bolles subject to a
showing of good cause for why Ms. Bolles was not listed in
the original prehearing submission. Mr. Ferguson then
submitted a filing which summarily explained that Ms.
Bolles would testify that she overheard Ms. Passmore ask
Mr. Ferguson to share his food with her at work. At the
merits hearing, the administrative judge denied Mr. Fer-
guson’s request for failure to show good cause and failure
to explain the relevancy of Ms. Bolles’ testimony. The ad-
ministrative judge also noted that Mr. Ferguson would not
be prejudiced by not allowing Ms. Bolles to testify because
Mr. Ferguson had not made any arrangements to contact
Ms. Bolles, who no longer worked at USPS. Based on this
record, there is no evidence that the administrative judge
abused her discretion.
Furthermore, Mr. Ferguson has failed to explain how
Ms. Bolles’ testimony would have affected the outcome of
his case before the MSPB, and instead summarily states in
his brief that “this witness was critical to my defense being
she was my direct supervisor.” Appellant’s Br. 4. The fact
that Ms. Bolles was Mr. Ferguson’s supervisor does not suf-
ficiently explain the relevance and materiality of Ms.
Bolles’ excluded testimony. For these reasons, the admin-
istrative judge did not abuse her discretion when she ex-
cluded Ms. Bolles from the witness list.

We have considered Mr. Ferguson’s remaining argu-
ments, but we find them to be unpersuasive. Accordingly,
the final decision of the Board affirming USPS’s removal
decision is affirmed.
No Costs.